5.  The applicant was born in 1957 in Baku and is currently serving a life sentence in Gobustan Prison.
6.  The applicant was a member of an organised criminal group which committed a series of robberies and murders in the Azerbaijan SSR, Russian SFSR and Georgian SSR between 1987 and 1989.
7.  On 12 November 1991 the Supreme Court of Azerbaijan, sitting as the court of first instance, convicted the applicant of involvement in organised crime and premeditated murder. By way of a merger of sentences, the applicant was sentenced to death and confiscation of property. Being a decision of the highest tribunal, this judgment was final and was not subject to appeal at the material time.
8.  Following the conviction, the applicant was transferred to the 5th wing of Bayil Prison, designated for convicts sentenced to death. Despite the existence of the death penalty as a form of punishment under the criminal law applicable at that time, the Azerbaijani authorities had pursued a de facto policy of a moratorium on the execution of the death penalty from June 1993 until the abolition of the death penalty in 1998.
9.  On 10 February 1998 Parliament passed the Law on Amendments to the Criminal Code, Code of Criminal Procedure and Correctional Labour Code of the Republic of Azerbaijan in connection with the Abolition of the Death Penalty in the Republic of Azerbaijan (“the Law of 10 February 1998”), which amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. The penalties of all convicts sentenced to death, including the applicant, were to be automatically commuted to life imprisonment.
10.  In 2000 a new Code of Criminal Procedure (“the CCrP”) and new Criminal Code were enacted. Before the new CCrP’s entry into force on 1 September 2000, on 14 July 2000 Parliament passed a transitional law allowing the lodging of an appeal under the new CCrP against final judgments delivered in accordance with the old criminal procedure rules (“the Transitional Law”).
11.  On 24 January 2005 the applicant lodged an appeal, together with a “petition to restore the missed appeal period” (without specifying which appeal period), with the Court of Appeal under the Transitional Law. He noted in particular that when he was convicted in 1991 there was no possibility of appeal against his conviction.
12.  By a letter of 15 March 2005 a clerk of the Court of Appeal replied that “the applicant could apply to the Supreme Court with an appeal against his criminal conviction”.
13.  The applicant complained about the letter of 15 March 2005 to the Supreme Court, asking it to examine the appeal against his conviction. By a letter of 19 May 2005, a deputy president of the Supreme Court replied that, since the applicant’s appeal concerned solely the issue of the alleged unlawfulness of commuting the death penalty to life imprisonment (instead of fifteen years’ imprisonment, as claimed by the applicant), the issue was outside the jurisdiction of the courts, as the applicant’s conviction had been final and the commutation of the sentence had been effected by a legislative act. The deputy president of the Supreme Court also stated that “the relevant law had been misinterpreted in the Court of Appeal’s letter of 15 March 2005 according to which the Supreme Court can deal with this issue”.
14.  In August 2005 the applicant lodged a new appeal with the Court of Appeal, challenging his conviction in 1991. In August 2005 the applicant also lodged a new appeal with the Supreme Court, reiterating his previous requests.
15.  By a letter of 1 September 2005 a clerk of the Supreme Court noted that the applicant “requested that his sentence be changed by way of lodging complaints under various procedures”. He further noted that the applicant should apply to a first-instance court under the procedure for complaints regarding execution of sentences. There was no information in the letter about the applicant’s appeal against his criminal conviction of 1991.
16.  On 9 August 2005 the applicant lodged an action with the Garadagh District Court, complaining that the new sentence of life imprisonment had been applied retroactively, to his detriment. He argued that his sentence should have been commuted to fifteen years’ imprisonment, which had been the only alternative to the abolished death penalty at the time when he had committed the criminal offences. He also asked the court to lift the criminal sentences imposed under the Criminal Codes of the Georgian SSR and Russian SFSR because, according to him, they did not apply in Azerbaijan.
17.  On 12 October 2005 the Garadagh District Court confirmed the commutation of the applicant’s sentence from the death penalty to life imprisonment.
18.  On 25 November 2005 the Court of Appeal and on 22 March 2006 the Supreme Court rejected the applicant’s appeal and upheld the commutation of the applicant’s sentence under the Law of 10 February 1998.
19.  Following his conviction on 12 November 1991 the applicant was transferred to the 5th wing of Bayil Prison, where he spent approximately seven and a half years.
20.  After the commutation of his sentence to life imprisonment, in late March 1998 the applicant was transferred to Gobustan Prison, located outside Baku, where he has been detained ever since.
21.  The applicant is being held, together with one other inmate, in a cell measuring 9-10 sq. m. The cell has two beds, a small bedside cupboard, and one small table and two chairs fixed to the cell floor. The toilet area is separated from the rest of the cell. The floor and ceiling are made of stone and concrete respectively. The temperature inside the cell is very high in summer and very low in winter. Central heating is available but inadequate.
22.  The window, which has metal bars, has no glass in it and in winter is covered with a transparent polyethylene film. The air inside is stale and the cell cannot be naturally ventilated. The food served in the prison is often of poor quality and lacks sufficient meat and vitamins, and the menu is unvaried and monotonous. The inmates are allowed only about half an hour’s outdoor exercise a day.
23.  After his transfer to Gobustan Prison, the applicant was detained in six different cells. All of these cells have two prisoners assigned to them and their area is at least 12 sq. m.
24.  The conditions of the applicant’s detention meet all national and international requirements and standards. The window of the cell can be opened from the inside. The window is large enough and does not prevent natural light and fresh air from coming in. The cell is also equipped with electric lights, a ventilator and a radio set.
25.  Since June 2008 the prisoners have had the right to watch TV for four hours a day and six hours a day at weekends and on holidays. The prison has a library the prisoners can use. The sanitary conditions are acceptable and the food served is of good quality. The applicant has the right to one hour’s outdoor exercise a day.
26.  The applicant was in good health before his arrest. In the summer of 1991, when the applicant was in pre-trial detention in Bayil Prison, he fell ill and was examined by a prison doctor. An X-ray examination revealed a shadow on the upper part of his right lung. The doctor recommended some treatment, of which details have not been given, but the prison warden did not allow it.
27.  After being transferred to the 5th wing of Bayil Prison, the applicant was placed in a cell in which two of his cellmates were suffering from tuberculosis. These two inmates later died of the disease, in 1993 and 1994 respectively. At around this time the applicant started coughing up blood. In the period between 1992 and 1998 the applicant tried to treat himself in his cell by taking antibiotics purchased with his own money.
28.  According to the applicant, during that period inmates of the 5th wing of Bayil Prison suffering from tuberculosis were generally not transferred to any specialised medical facilities, but received treatment in their cells. There was a high mortality rate among inmates with tuberculosis.
29.  Upon his transfer to Gobustan Prison in 1998, the applicant was examined by a doctor, but it was not a full examination and was based only on the applicant’s submissions. In August 1998, the applicant was again examined by a doctor and was diagnosed with bronchitis.
30.  On 12 November 1999 the applicant was examined for the first time by a tuberculosis specialist and was diagnosed with tuberculosis.
31.  On 20 November 2004 he was transferred for in-patient treatment to the Specialised Medical Establishment for Prisoners with Tuberculosis (“the SME”), where he was diagnosed with pulmonary tuberculosis. However, the doctors ultimately found that his state of health did not require treatment based on the World Health Organisation’s DOTS (Directly Observed Treatment, Short Course) programme. Thereafter, following seven days’ in‑patient treatment, he was transferred back to Gobustan Prison.
32.  On 29 January 2005 the applicant was again transferred to the SME. From 3 February to 29 March 2005 he received, for the first time, treatment based on the DOTS programme. According to the applicant, the conditions of treatment were not adequate in the SME and that is why he refused treatment.
33.  Since 2006 the applicant has been regularly examined by a doctor, however as he was not provided with adequate medical assistance from 1998 to 2004 he is suffering from residual symptoms of tuberculosis.
34.  The Government submitted that it was doubtful that the applicant had contracted tuberculosis in Bayil Prison, and that his version of events was contradictory. In this regard, the Government accepted that the applicant had shared a cell with an inmate suffering from tuberculosis, however, according to the Government, this could not be the reason for his contracting it, because the other inmate’s tuberculosis was not contagious.
35.  The applicant was provided with adequate medical assistance in Gobustan Prison and thus recovered.
36.  On arrival at Gobustan Prison, on 29 March 1998 the applicant was examined by the prison doctor. During this examination, the applicant stated that he had been treated for pulmonary tuberculosis before and that there had been no worsening of the condition in recent years. No serious illness was identified by the doctor.
37.  The applicant was subsequently examined on 5 April and 21 May 1998, and had expressed no complaint about his state of health. On 12 August 1998 the applicant was diagnosed with bronchitis and respiratory problems. He was prescribed medication and recovered.
38.  On 12 November 1999 the applicant was examined by a tuberculosis specialist. During this examination, the applicant stated that he had contracted tuberculosis ten years before, and that having had treatment he felt well. Examining the applicant, the doctor found no worsening of the tuberculosis, and prescribed antibiotics.
39.  Subsequently, the applicant was examined on 19 November 1999, on 7 February, in May and on 23 August 2000, and on 17 March 2001, by a doctor and no worsening of the tuberculosis was identified.
40.  From 2002 to 2004 the applicant was regularly examined by a doctor and treated for several conditions.
41.  In November 2004 the applicant was sent to the SME to establish whether the tuberculosis had reactivated. According to the clinic laboratory and X-ray results, the applicant had focal pulmonary tuberculosis and there was no reactivation of the tuberculosis. The examination was carried out in the presence of a representative of the International Committee of the Red Cross. It was decided that the applicant’s state of health was satisfactory and there was no need for in-patient treatment.
42.  In January 2005, at the applicant’s request, he was again examined by doctors: the result was negative. However, in order to prevent the reactivation of the tuberculosis the applicant was assigned to the SME. He received in-patient treatment based on the DOTS programme of the WHO from 3 February to 29 March 2005. This treatment was stopped because the applicant refused to continue with it.
43.  In January 2006 the applicant was assigned to the SME for examination. The applicant was examined on 11, 12 and 13 January 2006 and all the results were negative. He had clinical, laboratory and X-ray examinations in the presence of an ICRC representative. In November 2006 he was again assigned to the SME and had clinical, laboratory and X-ray examinations. The results of the examinations were negative and he was prescribed vitamins.
44.  In 2007 and 2008 the applicant’s state of health was satisfactory and he was prescribed medication.
45.  In November 2009, the applicant was again examined. According to this examination, the medical treatment he was receiving for his tuberculosis was adequate and efficacious and the applicant had only limited residual symptoms of tuberculosis.
46.  The Government submitted that the conditions of treatment in the SME met all the WHO standards. In this respect, they refered to the WHO Green Light Committee’s reports of 2005 and 2007.
47.  On 23 February 2007 the applicant lodged a civil action against the Bayil Prison authorities, seeking compensation for damage to his health. He claimed that the prison authorities were directly responsible for his having contracted tuberculosis, taking into account the poor conditions of detention and the fact that he had been held in the same cells as inmates with tuberculosis.
48.  In support of his claim, he submitted written statements by other inmates who had previously been detained in Bayil Prison. He also asked the court to hear some former inmates detained in Bayil Prison at the hearings. The applicant further asked the court to ensure his presence at the hearings.
49.  On 29 May 2007 the Sabail District Court dismissed the applicant’s claim, finding that the applicant had failed to prove that he had been deliberately placed in a cell with inmates who were ill and had contracted tuberculosis as a result. The court further held that, in such circumstances, the Bayil Prison authorities could not be considered to have ill-treated the applicant in any way. The applicant was not personally present at the hearing, but was represented. The judgment was silent as to the applicant’s request on his attendance at the hearing.
50.  The applicant lodged an appeal reiterating his complaints and his request to attend the hearing personally.
51.  On 30 November 2007, having examined the case in the absence of the applicant but in the presence of his representative, the Baku Court of Appeal dismissed the applicant’s appeal, finding that his arguments were unsubstantiated. The appellate court judgment was however silent as to the applicant’s specific request to attend the hearings.
52.  On 18 March 2008 the applicant lodged a cassation appeal, reiterating his previous complaints.
53.  On 20 June 2008 the Supreme Court dismissed the applicant’s appeal and upheld the Baku Court of Appeal judgment. The Supreme Court noted that there was no violation of material or procedural law which could be a reason to quash the impugned judgment. The proceedings before the Supreme Court had been held in the applicant’s absence, but in the presence of his lawyer. The Supreme Court’s decision was silent as to the applicant’s request for leave to appear.